65 W. Va. 170 | W. Va. | 1909
Tbomas D. Diddle, insured for the benefit of his wife,’ Lydia Diddle, in the Continental Casualty Company, for $2,000.00, was struck by a railway water column, while riding on a railway engine,' and killed. His wife brought this action on the policy and recovered a judgment for the sum of $2,049.30. Tlie defense was predicated on a limited liability clause in the policy, reading as follows: “Where the accident or injury results from voluntary exposure to unnecessary danger or obvious risk of injury, or from the intentional act of the Insured or of any other person; * * * or (2) where the accidental injury results from or is received while quarreling, fighting or violating the law; * * * then and in all cases referred to in this Part III, the amount payable shall be one-tenth of the amount which otherwise would be payable under this policy, anything in this policy to the contrary notwithstanding, and subject otherwise to all the conditions in this policy contained/’ Deeming this .clause applicable and controlling, under the circumstances attending the death of the assured, the insurance company tendered the beneficiary $200.00, one-tenth of the amount of the policy, less $20.00, due it on account of unpaid premium, which she refused.
There is practically no controversy as to the facts. The main question is whether the court can say, as matter'of law, on the admitted or established facts, the death of the insured resulted from voluntary exposure to unnecessary danger or obvious risk of injury, or occurred while he was violating law, and this is raised by exceptions, based on the giving of instructions for the plaintiff, refusal of instructions requested by the defendant and the overruling of a motion to direct a verdict for the defendant and a motion to set aside the verdict.
The following facts are disclosed by the evidence: The insured was a car-repairer' in the shops of the Chesapeake and Ohio
While the case is one of first impression in this state, the clause in question is, and has been, in general use by insurance companies for a long time, and its construction is thoroughly settled by numerous decisions in other jurisdictions. A voluntary exposure to necessary danger is not forbidden by it. Keene v. New England Accident Ass’n, 161 Mass. 149. A merely inadvertent and unintentional exposure to a known danger, under peculiar circumstances, not affording opportunity for deliberate action, is an involuntary, not voluntary, exposure. Keene v. Accident Ass’n, cited; Casualty Co. v. Chambers, 24 S. E. 896; Insurance Co. v. Osborn, 90 Ala. 201. Exposure to an unknown danger, though a voluntary act, is not a voluntary exposure. Miller v. Insurance Co., 92 Tenn. 167 (20 L. R. A. 765); Carpenter v. Accident Co., 46 S. E. 541; Johnson v. Accident Co., 115 Mich. 86; Burkhard v. Insurance Co., 102 Pa. 262; Deloy v. Insurance Co., 171 Pa. 1. Either reckless or deliberate encountering of known danger, or danger so obvious that a reasonably prudent person ought to have known it at the time of encountering it, is universally held to be voluntary exposure within the'meaning of
Applying these principles to the undisputed facts, disclosed by the evidence, we conclude that, as matter of law, there was-a voluntary exposure to obvious risk on the part of the insured. He must have known the location of the stand pipe or water-column and its proximity to the railway track. He had passed it frequently, and did so just before the accident. The danger
■ We are unable to accept the view that the other clause in the policy here quoted, limiting the liability when accidental injury results from or is received while quarreling, fighting or violating the law, precludes a recovery of the full amount of the policy. The mere jumping on or off of a car or train is not made a misdemeanor by section 4282, Code 1906. A passenger or employe may lawfully do this. The statute is aimed at trespassers. It is penal and ought to be strictly construed. Passengers and employes are expressly excepted, because they are on the premises by invitation of the railroad company, and have right and frequent occasion to board trains. The insured in this case was an emplojre of the railroad company whose engine he attempted to board, and his act was, therefore, expressly excepted by the statute, provided he was such an employe as is within the exception. The statute does not classify either employes or trains. The terms of the exception are general. In any attempt to limit it to employes of any class or department, or to exclude section men, shop employes or others whose duties do not require them to go on board the trains or engines, or passengers boarding other than passenger trains, the courts would apply the rule'of liberal construction to a penal statute in violation of an universally recognized principle. Ross v. Reeves, 62 W. Va. 7; Hall v. N. & W. R. Co., 44 W. Va. 36; Shumate v. Com., 15 Grat. 653; Yancy v. Hopkins, 1 Munf. 419; Lewis Suth. Stat. Con., sec. 526, et seq.
The views, principles and conclusions, here stated, make clearly apparent the error of the trial court in refusing to direct a verdict
The other two instructions refused, numbers 6 and 7, are predicated on the view that the insured was engaged in an unlawful act when the accident occurred. As we take the view that he was not so engaged, it necessarily follows that, in our opinion, the instructions were bad and properly'refused.
Over the objection of the defendant, the court gave one instruction for the plaintiff in which the jury were told, first, that the boarding of the engine was not a violation of the statute, making it criminal to jump on or off of trains; and, second, that they might find a verdict for the plaintiff if they believed from the facts, circumstances and evidence that the water tank was a dangerous obstruction, unless they should further believe that the danger was known to the insured and could have been
For the errors aforesaid, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Upon principles stated and the character of the case given in the opinion in this case, I would render final judgment for the defendant in this Court, especially as the defendant moved the court to direct a verdict. This Court finds the evidence insufficient to sustain the verdict. Therefore, the motion to direct a verdict should have been sustained. The defendant is entitled to have the error committed in overruling the motion for a verdict corrected on this appeal. I cite Mannin v. Insurance Co., 53 W. Va. 557, for reasons which would move me to * render final judgment. Also Ketterman v. Railroad, 48 W. Va. 606; Cobb v. Boom Co., 57 W. Va. 49.
Reversed and Remanded.